UK Supreme Court told legal effect of Indyref2 Bill would be 'nil'

Ms Bain put the argument in a carefully balanced written case to the UK Supreme Court on whether Indyref2 could take place without Westminster’s consent in the face of the UK Government blocking a fresh vote.

The 51-page document, which suggested a vote was possible if the Court ignored the wider political implications, was published by the Scottish Government today after being filed with the Court earlier this month.

Ms Bain said a definitive ruling from the Court would benefit the Scottish Parliament, the Scottish Government, the people of Scotland and the people throughout the UK by clearing up a “festering issue”.

She also said she would personally represent the Scottish Government’s interests at Court hearings scheduled for October 11 and 12. 

Taking a broadly neutral stance, her written case argued Holyrood could pass a Referendum Bill merely to “ascertain the wishes of the people of Scotland on their future”, with “nil” legal effect beyond that.

It said the UK Supreme Court could ignore all the political fallout of such a vote and confine its consideration strictly to matters of law.

“The wider motivations and aspirations of the Scottish Government and other political parties are not legally relevant,” the document said.

“The legal consequences of the Bill are, relevantly, nil.

“Any practical effects beyond ascertaining the views of the people of Scotland are speculative, consequential and indirect and should not properly be taken into account.”

However, the document also presented a series of counter arguments as to why the issue should be seen as beyond Holyrood's powers. 

These included the subject matter of the proposed Referendum Bill relating to the reserved area of the Union and the framers of the 1998 Scotland Act never intending Holyrood to stage an independence referendum solo.

It could also be argued that a referendum, although nominally to ascertain voters' views about independence, would have the clear puprpose of achieving independence and would have "significant political effects regardless of its outcome". 

The First Minister's statements to Holyrood last month on the issue could also be cited as evidence that the Scottish Government's objective in holding a referendum would be to have Scotland leave the United Kingdom. 

In addition, the case noted that although a referendum might be advisory, it could still have "great political significance", and was not necessarily "devoid of effect", as had been seen with 2016's advisory Brexit referendum. 

The 'on the one hand, on the other hand' approach of the written case  appeared to reflect Ms Bain's own lack of confidence that a Referendum Bill that lacked Westminster's consent may be incompetent. 

The issue of whether Holyood could stage Indyref2 without Westminster's authority and cooperation was "of exceptional importance to the people of Scotland and the United Kingdom" and central to a manifesto pledge endorsed by the Scottish electorate, Ms Bain said.

Her written case concluded: "Since 2007, at four successive Scottish parliamentary elections, the Scottish electorate has returned governments committed to giving the people of Scotland the choice of Scottish independence.

"Separately, at each UK General Election since 2015, a majority of MPs from Scottish constituencies have been elected on the same manifesto commitment.

"Against that background, and long-standing consensus that Scotland has the right to self-determination, to what extent, if at all, the holding of a referendum relates to a "'eserved matter' is a question of fundamental constitutional and public importance.

"Despite the highly charged political context, it is a question of law. It is therefore a question that can only be authoritatively detennined by this Count.

"The Lord Advocate believes it is in the public interest that clarity be brought to the scope of the Scottish Parliament's powers in respect of the issue.

"Accordingly, the Lord Advocate has invoked, for the first time, her right under the SA [Scotland Act 1998] to refer to this Court a devolution issue which is not currently the subject of litigation.

"She does so for the benefit of the Scottish Parliament, the Scottish Govenunent and the people of Scotland (indeed, people throughout the United Kingdom)."

The publication follows Ms Bain referring the issue to the Court last month after refusing to sign off a draft Holyrood Referendum Bill in case it was legislatively incompetent.

Nicola Sturgeon has said wants to stage Indyref2 in October 2023, but Boris Johnson has twice refused to grant Holyrood the power to make a vote legally watertight. Both his potential successors, Rishi Sunak and Liz truss, have said they would also refuse.

Unable to get her draft Bill approved by her law officers, Ms Sturgeon asked the Lord Advocate to make unprecedented use of her power to refer so-called "devoluution issues" to the Supreme Court for clarification.

Although the 1998 Scotland Act underpinning devolution states that the Union is an area expressly reserved to Westminster, legal academics have argued that it may still be lawful for Holyrood to consult people on their views on independence, provided there was no automatic legal effect. 

The issue has never been settled definitively by a court.

Ms Bain agreed to Ms Sturgeon's request to refer the matter to the Supreme Court for a ruling on whether the proposed Scottish Independence Bill - which would lead to people being asked "Should Scotland be an independent country?" - legally "relates to" the Union and the UK Parliament.

The UK Government argues it is premature to ask the Court to rule on a draft Bill that could yet be amended in Holyrood, as well as arguing that it most definitely relates to a reserved matter outside Holyrood's powers. 

If the Court agrees with the Scottish Government, Ms Sturgeon would aim to hold Indyref2 on October 19 next year.

If the Court goes against her, she has said she would fight the next general election as a "de facto referendum" on the single question of independence.

Tory MSP Donald Cameron said: “The SNP’s self-indulgent push for another divisive referendum is the worst possible priority at this time.

“We already know the Lord Advocate isn’t confident in the Scottish Government’s own arguments about the legality of the referendum bill, and SNP ministers didn’t allow her to come to the Scottish Parliament and answer questions from MSPs before the summer recess.

"Nicola Sturgeon’s relentless obsession with trying to break up the United Kingdom must end.

“She needs to stop playing these political games. Ordinary Scots want her fully focused on tackling the global cost-of-living crisis, addressing record high A&E waiting times, and accelerating our post-pandemic recovery.

“Instead, she is typically creating constitutional grievances to deflect from her own record of failure, and divide us all over again.”

Labour MSP Sarah Boyack said: “It is for the Supreme Court to consider these issues and provide an answer once and for all about where these powers lie.

“The SNP and the Tories have both spent years speculating about a referendum in a bid to stoke division and distract from their failures in government. 

“Yet, the fact remains whether or not the government can hold a referendum, it is a complete dereliction of duty to do so while bills are soaring, the NHS is in crisis, and people can’t afford to put food on the table.

“The SNP need to stop trying to tear communities apart, and start using the powers they already have to build a better future for Scotland.”

Speaking to the PA neews agency in Glasgow earlier today, Ms Sturgeon said: “I hope the outcome of the Supreme Court case will be that the Scottish Parliament can legislate for an advisory referendum to give people the opportunity to have their say on independence.”

A UK Government spokesperson said: “People across Scotland want both their governments to be working together on the issues that matter to them and their families, not talking about another independence referendum.”

“We are preparing our written case on the preliminary points we have noted, as well as the substantive issue, and will submit them to the Court in accordance with its timetable.

“On the question of legislative competence, the UK Government’s clear view remains that a Bill legislating for a referendum on independence would be outside the legislative competence of the Scottish Parliament.”